The
other week the Supreme Court denied
certiorari in Friedman
v. Highland Park, a
Seventh Circuit Court of Appeals decision that left intact the city’s
law that denied anyone in the community the ability to have assault
weapons or large-capacity magazines. In a dissent from the denial of
certiorari, Justice Clarence Thomas, joined by Justice Antonin
Scalia, wrote that the other Justices refusal to review the case
“flouts” the Court’s holdings in District
of Columbia v. Heller
and McDonald v. City of
Chicago, and in doing
so relegated the Second Amendment to a “second-class right.”
What Justice Thomas found “doubly wrong” was the Court’s
acquiescence to state and local governments deciding “which
firearms [the] people may possess.”

What
is particularly interesting about Justice Thomas’s dissent is it
embodies aspects of both originalism and living constitutionalism.
On the one hand, Justice Thomas criticizes the Seventh Circuit’s
opinion on the grounds it failed to properly consider the scope of
the Second Amendment “when the people adopted” it. He then
proceeds to criticize the Seventh Circuit for not recognizing the
number of contemporary Americans who own assault weapons and
high-capacity magazines. As Justice Thomas put it, “The question …
is not whether citizens have adequate alternatives available for
self-defense,” but “whether the law bans types of firearms
commonly used for a lawful purpose—regardless of whether
alternatives exist.”

Here,
Justice Thomas’s call to respect the framers’ Second Amendment,
yet adhere to a modern “common use” test perfectly highlights the
difficulty when employing history
in law—that is finding a jurisprudential balance between the
past and the present. While Justice Thomas places a historical
premium on the ownership of weapons so long as a significant number
are available in American society at large, he virtually ignores the
history of state and local firearms regulations to quell
violence, prevent crime, and mitigate public injury.
Some of these regulations were even aimed at prohibiting dangerous
weapons, particularly in densely populated areas. These historical
facts conflict with Justice Thomas’s doctrinal reasoning, do they
not?

Perhaps
Justice Thomas’s point is that history dictates that state and
local governments should not be allowed to outlaw firearms which are
universally accepted in other jurisdictions. That is, the Second
Amendment requires a national standard as to what firearms may or may
not be prohibited. But history does not favor Justice Thomas. From
the Reconstruction Era to the late twentieth century a variety of
regulations touching upon dangerous weapons existed at the state
and local level. In fact, up to 1979, forty-three states allowed
their respective cities,
towns, and localities to enact more stringent firearm regulations to
protect the health, safety, and welfare of its citizens.

Today,
of course, the landscape of firearms regulations is vastly different
than it was in years past. At the urging of the National Rifle
Association (NRA), most states have adopted firearm preemption laws
prohibiting cities, towns, and localities from enacting stricter
firearms regulations. This shift began in 1975, when the NRA stated
it would no longer compromise on gun control, period. It was a
position that hardened following the NRA’s 1977 Cincinnati Revolt,
when the organization’s membership rededicated and reformed the
organization with the express purpose of combating gun control. As a
result of this reformation, not even laws requiring comprehensive
background checks, allowing the Centers for Disease Control and
Prevention to research
gun violence, or prohibiting the sale of firearms to suspected
terrorists are blessed with the NRA’s approval.

The
NRA was not always unwilling to compromise on gun control. In 1924
for instance, the NRA used the analogy of regulating the driving of
motor vehicles with the handling of firearms in public: “It would
seem … a logical part of any public safety program that before a
man is given a weapon and empowered
to use it, for the
authorities to make certain that the chances of damage to life are
reduced to a minimum.”

Up
through 1967 the NRA claimed it “always has … and always will be
ready to do what is best for America,” to include never placing its
organizational goals or firearm heritage “ahead of the national
welfare.” This included supporting such gun controls as disarming
every individual who has committed a felony, crime of violence or has
a “notoriously bad character,” legislation that required firearm
purchasers to identify themselves, firearm dealers to maintain
records of sales, parental consent before selling a firearm to a
minor, and a seven day waiting period before purchasing a handgun.

There
was even a point in time, in 1937, where the NRA did not object to a
law requiring the registration of Magnum revolvers in
the same vein as machine guns and sawed-off shotguns. The NRA’s
rationale was the Magnum “performs no practical function for the
sportsman which cannot be as well or better performed by arms of
standard type,” and therefore “it is impossible to defend the
Magnum against legislation which would have the practical effect of
limiting its sale to agents of the Federal, States, and local
police.” The NRA’s admission that prohibiting the Magnum was
acceptable because any “practical function,” to include homebound
self-defense, could be accomplished by “arms of the standard type”
is significant, for it is the very same rationale that Justice Thomas
criticized the Seventh Circuit for employing in Friedman
v. Highland Park.
Needless to say, it is curious how what was once considered
acceptable and constitutional gun control in years past, by all
parties, suddenly “flouts” the Constitution.

The
overall point to be made is the Seventh Circuit did not relegate the
Second Amendment to a “second-class right” as Justice Thomas
claims. History refutes such a conclusion. The fact of the matter is
the modern
perception of the Second Amendment as guaranteeing broad firearm
rights in both public and private is just that—modern.